Chicago’s latest attempts to ban gun ranges within its city has failed again in federal court, again at the Seventh Circuit. The three-judge panel upheld a lower court ruling that overturned zoning restrictions that clearly intended to keep ranges from operating. In a 2-1 split, the appellate court also overturned a blanket ban on minors entering gun ranges under any circumstances (via NewsAlert):
The appeals court on Wednesday ruled that city ordinances restricting gun ranges to manufacturing areas in Chicago are unconstitutional. The ordinances also placed limits on the distances they can be located in relation to other gun ranges and to residential areas, schools, parks and places of worship.
A three-judge panel of the Seventh Circuit Court of Appeals noted the city claimed the ordinances serve important public health and safety interests, specifically that they attract gun thieves, cause airborne lead contamination and carry a risk of fire.
“The city has provided no evidentiary support for these claims, nor has it established that limiting shooting ranges to manufacturing districts and distancing them from the multiple and various uses listed in the buffer-zone rule has any connection to reducing these risks,” the court wrote in its opinion.
Interestingly, the governing opinion for the case known as Ezell II was written by Diane Sykes. Sykes has been rumored to be a short-lister for Donald Trump in his choices for filling the Supreme Court seat left vacant by Justice Antonin Scalia’s passing a year ago. The current thinking is that Trump might want Sykes for a later opening, especially if he needs to replace Ruth Bader Ginsburg, but this might not be a bad audition either way.
Sykes gets right to the point in the opening of the opinion. After noting that the Seventh Circuit had ruled on the fight between the city of Chicago and Rhonda Ezell et al once before, Sykes scoffs at the city’s attempts to use zoning regulations for the same purposes as their previous explicit ban:
The two zoning regulations—the manufacturing-district classification and the distancing rule—dramatically limit the ability to site a shooting range within city limits. Under the combined effect of these two regulations, only 2.2% of the city’s total acreage is even theoretically available, and the commercial viability of any of these parcels is questionable—so much so that no shooting range yet exists. This severely limits Chicagoans’ Second Amendment right to maintain proficiency in firearm use via target practice at a range. To justify these barriers, the City raised only speculative claims of harm to public health and safety. That’s not nearly enough to survive the heightened scrutiny that applies to burdens on Second Amendment rights.
Sykes also demolishes the city’s ban on minors by noting that their own testimony showed that properly supervised firearm training for minors works:
The age restriction also flunks heightened scrutiny. We held in Ezell I that the Second Amendment protects the right to learn and practice firearm use in the controlled setting of a shooting range. The City insists that no person under age 18 enjoys this right. That’s an extraordinarily broad claim, and the City failed to back it up. Nor did the City adequately justify barring anyone under 18 from entering a range. To the contrary, its own witness on this subject agreed that the age restriction is overbroad because teenagers can safely be taught to shoot and youth firearm instruction is both prudent and can be conducted in a safe manner.
It didn’t help matters, Sykes writes, that the city never provided evidence that their zoning and buffer restrictions had a rational basis. In fact, they testified that they didn’t even bother to look for evidence, which left the court less than impressed (emphases in the original):
The City’s own witnesses testified to the lack of evidentiary support for these assertions. They repeatedly admitted that they knew of no data or empirical evidence to support any of these claims. Indeed, Patricia Scudiero, the City’s zoning administrator, conceded that neither she nor anyone else in her department made any effort to review how other cities zone firing ranges. She conducted no investigation, visited no firing ranges in other jurisdictions, consulted no expert, and essentially did no research at all.
As for the fire hazard — another argument the city made for its zoning and buffer regulations — Sykes writes that they don’t seem particularly concerned about that when it comes to police ranges, some of which are in the areas prohibited by Chicago regulations:
And if more were needed, the City concedes (as it must) that law-enforcement and private-security ranges operate in commercial districts throughout Chicago near schools, churches, parks, and stores; the City acknowledges that they operate quite safely in these locations. Common sense suggests that law-enforcement ranges probably do not attract many thieves, but the City’s theft-protection rationale for these zoning rules is so woefully unsupported that the distinction between law-enforcement and commercial ranges doesn’t carry much weight. The City doesn’t even try to argue that commercial ranges create greater fire or environmental risks than law-enforcement ranges.
It’s true that fires can break out in gun ranges. Firearms do not burn 100% of the powder in the cartridges, and the unburned powder gets ejected downrange. Ranges clean up those areas constantly, but the powder can collect in cracks in the concrete and a ricochet can spark the powder. This happened at a range near me shortly before I bought my most recent pistol there, in fact.
However, the solution for that is the same for higher-risk areas — adequate fire suppression systems to put out the fires. (Lumber yards are much more susceptible to flash fires than gun ranges, for instance, from the sawdust that hangs in the air.) That’s an issue for fire marshals to work out with the building owners on a case-by-case basis, not a reason to bar businesses from operating at all. Having worked in the fire-alarm industry for almost twenty years, I can attest that commercial buildings do not get signoffs from the local fire department without having fire suppression and signaling systems designed specifically for both location and use of the facility, and occupancy does not occur until the fire marshal signs off on the entire system after a thorough test.
In short, Chicago wasn’t really concerned with fire safety, nor of community safety by combining up zoning and buffer requirements to block out 98% of the city from gun ranges. They want to exploit their local authority in regulations in order to deny citizens their constitutionally protected right to bear arms — which includes, as Sykes states, the right to access facilities designed to improve their abilities to do so.
Undoubtedly, Chicago will try it again. And perhaps Sykes will be on a Supreme Court panel that will put an end to this kind of nonsense wherever it occurs.